November 15, 2022

As the COVID-19 pandemic continues to raise safety concerns for employers, the Department of Homeland Security (DHS) has extended remote Form I-9 flexibility for employees working remotely until July 2023. In addition, the DHS has announced that employers should continue using the current version of Form I-9, which has an expiration date of October 31st, 2022. These are two significant updates employers should consider in light of this news. Here is a closer look at what these changes mean.

Continue to Use the Current Form I-9 Until Further Notice

Though the current Form I-9 expired on October 31st, the DHS has not yet released its replacement. As a result, the DHS has indicated that employers should continue using the existing version. The DHS will provide a new expiration date in an upcoming Federal Register notice.

The DHS will likely provide some time for employers to adapt to the new form. However, employers should remain aware of any changes, as a failure to use the new form promptly could result in significant penalties.

Remote Documentation Inspection Extended

Employers have continued to take safety precautions in response to COVID-19, so the DHS has extended its remote inspection flexibilities until July 31st, 2023. This extension means employers may continue to review new hires’ identity and employment authorization documents via video call, fax, email, or other virtual means to complete Form I-9 under the right conditions.

This temporary rule permits employers to use these remote flexibilities when employees work remotely due to pandemic-related precautions. It also applies when employees cannot be physically present due to quarantine or no travel orders.

These flexibilities mean employers do not need to physically examine qualifying employees’ documentation for the time being. However, employers should remember that, once the policy ends or employees resume physically reporting to the workplace on a regular, consistent, or reliable basis, they must perform the physical inspection within three business days.

Are Changes on the Way?

This extension could be part of the DHS’s plans to create a permanent remote procedure for electronic document review. The DHS has clarified that it is looking into possible methods for creating a permanent remote inspection procedure. Many employers anxiously wait to see if such an alternative is made available before the expiration of these remote flexibilities.

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